Can you sue a doctor for misdiagnosis of a terminal illness?

Published 20 Feb 2018

Finding out that you or a loved one has a terminal illness is devastating.

The news can be even more distressing when medical practitioners misdiagnosed the illness, leaving you wondering whether a disease could have been stopped in time if doctors had only recognised the symptoms.

Compensation is available for people who suffer medical negligence in NSW, but does this include the misdiagnosis of a terminal illness? There is no one-size-fits-all answer, so let's examine some of the factors that are taken into account.

Liability law and medical negligence

The Civil Liability Act 2002 is the governing legislation for medical negligence cases in the state.

Medical practitioners have an obligation to ensure patients' safety and wellbeing while under their care. If professionals breach this duty of care, a court may decide they are negligent and award damages to the plaintiff accordingly.

One of the key factors in medical negligence claims is whether or not the practitioner acted in a way that other experts in the field believe falls below the accepted standard of care.

In other words, would other doctors have reasonably been expected to behave in the same way as the defendant if they were placed in an identical situation?

As such, courts often receive evidence from a panel of medical experts to help them decide whether or not a defendant was negligent.

How does this apply to misdiagnoses?

Diagnosing illnesses isn't always an exact science. For example, patients with the same diseases may present with different symptoms and vice versa.

Some illnesses can't be formally diagnosed through existing tests, which means medical practitioners must instead attempt a diagnosis by eliminating all other options.

Nevertheless, doctors, nurses and specialists are trained to follow specific procedures when a patient displays certain symptoms in an effort to rule out the most serious diseases first.

Medical practitioners who fail to follow established procedures or miss obvious signs of a serious disease could be considered negligent. If the illness has become terminal due to this negligence, the plaintiff could receive significant compensation for lost income, medical expenses and pain and suffering.

Proving causation in medical negligence claims

Unfortunately, proving negligence isn't always a guarantee that a plaintiff will receive compensation. They must also show that this negligence resulted in the personal injuries outlined in the claim.

Last year, a man died of skin cancer that his GP had misdiagnosed as a plantar wart on his foot. The man died and his wife pursued compensation.

However, the courts ruled in favour of the doctor because the plaintiff's legal team were unable to prove that the cancer wasn't already terminal when the man first visited his doctor.

This was obviously a disappointing outcome for the plaintiff, but the case highlights some of the complexities of pursuing medical negligence compensation.

Do you have further questions about negligence claims and misdiagnoses? Please get in touch with Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers for more information.